THE SENATE'S COLD WAR over judicial nominations is at a crossroads. With a newly minted chamber taking office January 4, and a new minority leader already designated, the time seems ripe for a fresh start. The Republican majority wants an end to all active Democratic filibusters of appellate court nominees and the cession of such tactics in the future. Will the opposition comply?

The answer hinges on two unknowns: first, what lessons Senate Democrats draw from the 2004 election; second, the tone set by their new leader, Nevada senator Harry Reid. Retiring senator Bob Graham has predicted "less willingness" among Democrats "to participate in a filibuster" of circuit court nominees, and Reid claims Republicans are "crying wolf." "My position is this," Reid told reporters on November 16. "Two hundred and three federal judges were approved--203. Ten were turned down. Does that require any kind of a 'nuclear option'? I would certainly think not." Republicans hope for judicial détente. But they're prepared to "go nuclear."

Not that all GOP senators would use that term. Many prefer the gentler "constitutional option." Whatever the nomenclature, at issue is a controversial parliamentary maneuver. Essentially, Republicans would alter Senate procedure on judicial confirmations in order to prevent filibusters.

Just how they'd do so is unclear. The nuclear option could take several shapes. For instance, GOP senators might seek to officially change Senate rules. Or, they might simply reinterpret Senate precedent. In one widely discussed scenario, Republicans would secure a ruling from the chair that would allow them to obtain cloture on judicial nominations by majority vote. When this decision came down, Democrats would appeal. Republicans would need 51 votes (or 50 plus Vice President Cheney) to table the appeal and uphold the ruling.

GOP senators have toyed with such ideas for almost two years, but they didn't have enough votes. In a de facto 51-49 Senate, there weren't enough Republicans on board. The chief GOP holdouts were Susan Collins, Lincoln Chafee, and Olympia Snowe, while John McCain and Arlen Specter were leery. McCain and Specter are still hedging, but that might not matter. With Senate Republicans soon to be brandishing an effective 55-45 majority, they could have the votes to move forward regardless.

"I think the numbers might actually be there this time," says one GOP Judiciary staffer. "Yes, it's more likely" now, affirms a senior Republican aide. With 55 seats, Republicans "can lose 5 [votes] and still be okay." And if GOP senators don't push the button? "We are on a path to 20, 30, who knows how many filibusters," says the aide. Not to mention the possible filibuster of a future Supreme Court choice.

So far, ten of President Bush's appellate nominees have been filibustered. (One, Miguel Estrada, withdrew his name in September 2003; two others, Charles Pickering and William Pryor, were given recess appointments that will soon expire.) These filibusters are unprecedented. And Democrats have pegged at least six more circuit court picks for similar treatment. Each of the filibustered designees would breeze through on a floor vote. But the Senate minority now wields a practical veto over judges.

But what of its legality? If Republicans merely tinker with Senate precedent, they're on sturdy ground. If GOP senators look to formally amend Senate rules by majority vote, they may be okay, too--at least according to a wide swath of constitutional experts.

Indeed, myriad scholars argue Senate Rule XXII, which requires a two-thirds supermajority for cloture on rules changes, is unconstitutional. They cite a timeworn Anglo-American tenet that prevents legislators from binding their successors. This principle stretches from William Blackstone through James Madison. "One legislature doesn't have the authority to tie the hands of another legislature," says Duke law professor Erwin Chemerinsky, a prominent liberal. Rule XXII thus entails "impermissible entrenchment."

Michael Rappaport, a conservative law professor at the University of San Diego, agrees. "A majority of the Senate, constitutionally, has to have the right to change that filibuster rule," he says. The murky bit is just when or how often a majority can exercise that right. As presidents of the Senate, Rappaport notes, Richard Nixon, Hubert Humphrey, and Nelson Rockefeller all held that a majority could amend Senate rules at the outset of a new session. Those aren't "clear precedents," he acknowledges, since Humphrey's ruling was overturned. "But it's by no means a new view, or an unprecedented view."

Either way, GOP senators remain hesitant to pull the trigger. "It's called the 'nuclear option' because I think the Senate would literally melt down," explains Chemerinsky. "The Democrats would simply grind the Senate to a halt." Anxiety over such fallout may eventually prompt Republicans to go wobbly. But they hope not to reach that pass. Republicans say judicial gridlock was a big loser for Democratic Senate candidates this year. They point especially to the unseating of outgoing minority leader Tom Daschle.

"Tom Daschle's defeat was very instructive," says Texas Republican John Cornyn. "Until then, the Democrats had calculated that all of this was beneath the radar of most of the electorate, and that there wasn't any penalty to be paid. . . . But I think that one of the reasons Daschle was defeated was because of obstructing the president's judicial nominees." Cornyn believes this may chasten Daschle's colleagues.

Ideally, yes. With Daschle gone, some Democrats might abandon the filibusters. Four moderate red-state Democrats--Jeff Bingaman of New Mexico, Kent Conrad of North Dakota, Ben Nelson of Nebraska, and Bill Nelson of Florida--are up for reelection in 2006. So are blue-state moderates Mark Dayton of Minnesota and Tom Carper of Delaware. But powerful liberals Ted Kennedy, Chuck Schumer, and Richard Durbin have already been rattling swords. And should Bush have the boldness to continue tapping judicial conservatives, especially those who have been critical of Roe v. Wade, the liberals will remain in high dudgeon. The confirmation fracas, after all, is at root a debate over judicial philosophy.

Even if Republicans have the votes, my guess is they won't push the nuclear button anytime soon. But by leaving the door open, they could gain leverage. History offers a guide here. On at least three occasions--in 1917, 1959, and 1975--a variation of what's now called the nuclear option was deployed or seriously threatened as a catalytic mechanism to force changes in Senate rules. That is, senators acted under the palpable fear of a majority's going nuclear. Today, Frist's warning--if seen as credible--might bring the same result.

The most viable trade-off would be the Frist-Miller Filibuster Reform bill, floated in May 2003. Under this reform, the number of votes needed for cloture on judicial nominations would decline progressively with each attempt. The first try would require 60 votes, the second 57, then 54, then 51, and finally a simple majority. (The bill is modeled on legislation proposed by Democrats Tom Harkin and Joe Lieberman in 1995 but defeated.) Of course, since this is a rules change, it would itself need supermajority support to stave off a Democratic filibuster. And indeed, the threat of a filibuster has heretofore kept Frist-Miller in legislative limbo.

Republicans are being tight-lipped about their strategy. Yet it's clear they find the status quo untenable. As Frist told the Federalist Society, "One way or another, the filibuster of judicial nominees must end."

Each Senate is entitled to make ist own rules. Each succeeding Senate has exactly the same authority and power as those preceeding it. The new Senate is not obligated to labor under the rules established for a previous Senate.

The Parliamentarian should be instructed to determine if the new Senate is as powerful as the last one. When it has been determined that it is, the rules should be revised regarding the use of filibuster, and the new rules passed by simple majority.

Four moderate red-state Democrats--Jeff Bingaman of New Mexico...--are up for reelection in 2006.

The writer has been drinking Kerry Kool-aid if he thinks Bingaman is a moderate: The American Conservative Union gives him a lifetime rating of 13 (out of 100) and a rating of 10 for 2003. In fact, Bingaman had a lower rating for 2003 than our leftwing Congressman Tom Udall (12/100).

If the roles were reversed, do you think the Rats would wait one second before using the nuclear option?

It says in this article the threat of the option has been used but does say actually used, but I'm sure I read somewhere a couple of times, that it has been actually used, and it was used by the democrats, at least once in the 1970's regarding something.

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